[2017] FWC 1585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Desmond
v
BHP Billiton Nickel West Pty Ltd
(U2016/12041)

COMMISSIONER WILLIAMS

PERTH, 23 MARCH 2017

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Paul Desmond (Mr Desmond or the Applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is BHP Billiton Nickel West Pty Ltd (BHP or the Respondent).

Background

[2] Mr Desmond was dismissed on 12 September 2016 and paid 5 weeks’ salary in lieu of notice. The letter of termination dated the same day referred to an investigation which BHP said established that Mr Desmond had brought his personal trailer to the work site on two days in August 2016 and on both days requested employees of BHP to undertake work on the trailer during working hours. Mr Desmond was the Supervisor of the employees who undertook the work on his trailer. The letter says that these actions breach BHP’s Code of Business Conduct and Charter Values and warrant termination of Mr Desmond’s employment.

Factual findings

[3] At the hearing Mr Desmond gave evidence on his own behalf and submitted witness statements from Mr Roger Ling (Mr Ling) and Mr Leigh Piggott (Mr Piggot), the two employees who worked on Mr Desmond’s trailer. A witness statement was also submitted from Mr Darren McCarthy (Mr McCarthy) the Maintenance Supervisor of BHP. The Respondent did not seek to cross-examine Mr Ling, Mr Piggott nor Mr McCarthy. Mr Desmond also called Mr Paul Hartlebury (Mr Hartlebury) an official from the Australian Workers’ Union (the AWU) who attended meetings as his support person.

[4] For the Respondent Mr David King (Mr King), the Production Execution Superintendent, gave evidence.

[5] The parties submitted to the Commission the following agreed facts which I accept in full.

[6] The Applicant commenced employment with Western Mining Corporation on 1 August 1995 at what is now the Respondent’s Kambalda site. The Applicant’s employment was transferred to the Respondent on 8 May 2005, and all prior service was recognised.

[7] In 2004, the Applicant was promoted to the position of Relief Shift Supervisor. In this role the Applicant was also an Appointed Person under section 44 of the Mines Safety and Inspection Act 1994 (WA) (MSI Act).

[8] At all material times, the Applicant held the role of Shift Supervisor. He continued to be an Appointed Person under the MSI Act.

[9] The Applicant’s appointment under section 44 of the MSI Act was renewed on 10

December 2014. A copy of the renewal was submitted to the Commission.

[10] On 31 March 2014, the position description for the role of Production Shift Supervisor was replaced. A copy of the position description was submitted.

[11] It is a term of employment with the Respondent that its’ employees comply with the Respondent’s policies and procedures.

[12] The Respondent’s two key policies are the BHP Billiton Code of Business Conduct (Code) and the BHP Billiton Charter (Charter). Copies of both the Code and the Charter were submitted.

[13] The provisions of the Code which address acceptable use of the Respondent’s assets are found on pages 48-50, and the provisions which address the Respondent’s expectations of supervisors are found on page 6.

[14] All employees of the Respondent are required to complete annual refresher training on the Code and Charter. The Applicant most recently completed this training on 3 June 2016. A copy of the training records confirming all the training the Applicant completed during his employment (including the dates on which he completed refresher training on the Code and Charter) was submitted.

[15] On 25 May 2015, the Respondent issued the Applicant with a final written warning following some emails which he sent to his Superintendent. That written warning stated:

“Any further breaches of your contract of employment, policies, procedures or employment obligations will result in termination of your employment.”

[16] A copy of the final written warning was submitted to the Commission as were copies of the emails which the Applicant sent to his Superintendent which resulted in the final written warning being issued.

[17] On the weekend of 13 and 14 August 2016 the Applicant was rostered to work night shift.

[18] On 13 August 2016, the Applicant brought a trailer owned by himself or his wife to the Respondent’s Kambalda site. During that shift he asked Mr Ling, one of his direct reports, to carry out some welding work on the trailer. That work was performed by Mr Ling.

[19] On 14 August 2016, the Applicant brought the trailer to the Kambalda site for a second time. The trailer was brought to site so that wiring could be connected to the tail lights on the trailer. That work was performed by Mr Piggott (another of the Applicant’s direct reports). The work was performed using equipment owned by the Respondent. The Applicant purchased and supplied the wiring.

[20] On 13 and 14 August 2016, the work described above was discussed between the Applicant, Mr Ling and Mr Piggott during the ‘pre start’ meeting for the shift.

[21] An investigation into the events of 13 and 14 August 2016 was initiated on 15 August 2016. As part of that investigation, a representative of the Respondent spoke with, and obtained statements from the Applicant, Mr Ling and Mr Piggott. A copy of the Applicant’s statement was submitted to the Commission.

[22] On 12 September 2016, the Applicant attended a meeting with Mr King, Superintendent and Ms Stacey Scaffardi (Ms Scaffardi), Manager, Employee Relations. Mr Paul Hartlebury, from the AWU attended the meeting as the Applicant’s support person.

[23] During this meeting the Applicant was advised of the outcome of the Respondent’s investigation. The Respondent advised the Applicant that it considered he had breached the Code and the Charter, and that the Respondent was considering terminating his employment.

[24] The Applicant was given an opportunity to respond to the reasons for which the Respondent was considering terminating his employment, and to put forward any additional information which he wanted the Respondent to consider.

[25] After the Applicant had spoken, a break was called in the meeting. After that break, the Applicant was informed that the Respondent had decided to terminate his employment.

[26] The Applicant's employment was accordingly terminated on 12 September 2016. He was paid five weeks’ salary in lieu of notice. A copy of the Applicant’s termination letter dated 12 September 2016 was submitted to the Commission.

[27] Having considered the witness evidence I make the following additional factual findings.

[28] Mr Desmond is a single father of two children. His ex-wife lives interstate.

[29] Mr Desmond said that the channel problem on the trailer that was worked on had been present for 12 months.

[30] Mr Desmond said that the wiring that he supplied for the trailer had been purchased by him some time earlier.

[31] Mr Desmond said he was under time pressures related to his intention to travel interstate with his children to visit his ex-wife and with personal effects loaded onto the trailer. He explained that he felt it was absolutely essential that before this trip he ensured the trailer was roadworthy. He was stressed about these matters in part because of the difficult relationship between him and his ex-wife.

[32] Mr Desmond was responsible for monitoring the performance of both Mr Ling and Mr Piggott. Mr Desmond agreed that they both depended upon him with regard to his recommendations regarding salary reviews and potential promotions.

[33] It was Mr Desmond who asked Mr Ling and Mr Piggott to do work on his trailer.

[34] Mr Desmond was adamant that the fact he was their Supervisor did not make his request of Mr Ling and Mr Piggott to work on his trailer uncomfortable for them.

[35] Mr Desmond acknowledges that when Mr King first asked Mr Ling and Mr Piggott about these events they each initially answered dishonestly.

[36] With respect to evidence from Mr McCarthy that on past occasions he had permitted Mr Desmond to use BHP equipment from the maintenance workshop for his personal use at home, Mr Desmond’s evidence was that on each of these occasions he sought approval from Mr McCarthy to borrow the equipment before doing so. I infer from this evidence of Mr McCarthy and Mr Desmond that when this had occurred in the past the equipment was not used at BHP’s site and not used during Mr Desmond’s working hours.

[37] The statement from Mr Ling says that Mr Desmond asked him to do a small welding job on his trailer on 13 August 2016 which he willingly did and he was not forced to do so. The work was done on his scheduled break.

[38] The statement from Mr Piggott is that on 14 August 2016 Mr Desmond asked him if he could help do some work on Mr Desmond’s trailer. He was happy to help and it was during his crib break. His statement says he also worked on a superintendent’s trailer on site for a couple of hours a few years ago. Mr Piggott’s statement is that he did not feel pressured to work on Mr Desmond’s trailer and knew there would be no consequences if he refused.

[39] The evidence of Mr King was that from 2014 until the termination of his employment, Mr Desmond held the position of Shift Supervisor and reported directly to Mr King.

[40] Between December 2015 and the time of Mr Desmond's dismissal a total of five people reported directly to him.

[41] Shift Supervisors are responsible for ensuring that the production targets for the concentrator set down in the monthly operating plan and weekly schedule are met, and that tasks are appropriately allocated to the employees they supervise so that this occurs.

[42] As a Shift Supervisor, Mr Desmond was responsible for ensuring that resources were allocated so that all production, operations and maintenance targets were met. Mr Desmond was often the most senior employee on site and was responsible for all ‘front line’ management decisions when he was supervising a shift.

[43] The expectations of supervisors are made clear on page 8 of the Code, which states:

“Supervisors and managers must take all reasonable steps to ensure that the people for whom they are responsible are aware of and uphold the behaviours outlined in the code and charter values, which includes consistently demonstrating exemplary behaviour.”

[44] As a Supervisor, Mr Desmond was also involved in counselling and disciplining his direct reports in relation to breaches of the Code and the Charter, and also escalating these issues to Mr King when required.

[45] The Charter values are displayed on notice boards in the workplace, and are also discussed frequently during pre-start meetings.

[46] Amongst other things, the Code sets down the rules which apply in relation to employee use of BHP assets. On page 49, the Code says:

“BHP Billiton assets should at all times be used for the purpose and in the manner intended, with all appropriate and accurate records kept.”

and

“You are responsible for appropriately using and safeguarding BHP Billiton assets, both physical and non-physical.”

[47] On page 50, the Code says that employees must always:

“Use BHP Billiton assets for their intended purpose" and must never "Use BHP Billiton assets for their personal gain.”

[48] These are absolute requirements which all employees are required to comply with at all times.

[49] On the right hand side of page 50 of the Code, there are some question and answer style examples which are intended to give employees further guidance in relation to what is and is not acceptable use of BHP assets. However, these are examples only, and they do not change the fact that employees must only use BHP assets for their intended purpose, and never for personal gain.

[50] One of the examples on page 50 of the Code concerns an employee using BHP IT equipment to run a personal business. The ‘answer’ section of that particular example says:

“BHP Billiton assets, including its information systems and communication resources are only to be used for Company business purposes and moderate personal use.”

[51] In reading that answer, together with the other provisions of the Code (in particular the requirement that assets must only be used for their intended purpose and never for a personal gain), the types of personal use of BHP assets which might be acceptable would be things such as using a computer to transfer some money or pay a bill, using a computer to look something up on Google, or to check a share account. These sorts of tasks are the extent of what would be a permitted personal use of BHP assets.

[52] It is clear from the wording of the Code that the Respondent’s assets must never be used for a personal gain. Mr Desmond obtained a very clear personal gain from having two of his direct reports perform repair works on his trailer. The gain is that he was not required to pay someone else to perform those works. It is very clear in the Code that this conduct is never acceptable.

[53] Mr Desmond’s employee file contains the following information in relation to disciplinary action taken against him before Mr King commenced employment with the Respondent:

(a) On 15 May 2009, a meeting was held with Mr Desmond to discuss concerns which had arisen in relation to his conduct.

(b) On 5 July 2013, a note was placed on Mr Desmond’s employee file regarding some emails he had sent to his Superintendent in June 2013.

(c) On 14 March 2014, Mr Desmond was verbally counselled regarding a comment he had made about members of the maintenance team in the presence of other employees.

[54] In 2014, the Respondent introduced a new reporting form called the Shift Coordinators Log Sheet which Shift Supervisors were required to fill out at the end of their shift.

[55] In the months after the Log Sheet was introduced, and as the Shift Supervisors got used to completing it, a few issues arose in relation to how the Log Sheet was being completed. For example, pieces of information were missing or not properly recorded, or the Log Sheet was not completed and sent out on time.

[56] At 3.16 p.m. on 4 May 2015, Mr King sent an email to all of the Shift Supervisors asking them to ensure that they completed the Log Sheet properly and on time, and reminding them that it was an important document.

[57] At 7.34 p.m. on 4 May 2015, Mr Desmond responded to the email. Mr King considered Mr Desmond’s response was unacceptable. It was sarcastic and disrespectful and did not align with the Charter, particularly the value of “Respect”.

[58] At 10.47 a.m. on 5 May 2015, Mr King responded to Mr Desmond informing him of this, and asking him to come and see him at 8.30 a.m. on 8 May 2015 to discuss.

[59] At 2.58 a.m. on 6 May 2015, Mr Desmond sent another email to Mr King. Mr King considered that the tone and content of that email was unacceptable and did not align with the Charter.

[60] Mr King discussed the emails Mr Desmond had sent with Mr Jurgen Achleitner (Mr Achleitner), who was his Direct Supervisor at the time and Mr Achleitner agreed that the tone and content of Mr Desmond’s response was unacceptable.

[61] On 8 May 2015, Mr King met with Mr Desmond to discuss the emails which he had sent. Ms Adri Ace (HR Business Partner) also attended that meeting. In that meeting Mr King told Mr Desmond that the tone and content of his emails was unacceptable and asked him if there was anything he wanted to say.

[62] In response, Mr Desmond said that he was under a lot of stress because he was in the process of splitting up with his wife, and was also under a significant amount of financial pressure. He explained that he had been consuming a lot of alcohol to deal with his stress, and had been under the influence of alcohol at the time he had sent the email on 6 May 2015. He said he had realised in the morning that he should not have sent the email. He also explained that he felt that the first email Mr King had sent regarding the Log Sheet was targeted at him, and that he was being singled out in front of his colleagues.

[63] In reply, Mr King told Mr Desmond that the email was addressed to all the Shift Supervisors, and was intended to remind everyone that it was important to ensure the Log Sheet was filled out correctly and on time. Mr King explained to Mr Desmond that if there had been a particular issue with him, he would have spoken to him directly about it.

[64] Mr King then told Mr Desmond that it was unacceptable to send any work-related emails while he is under the influence of alcohol, and that he must not do this again. He told Mr Desmond that he would be issued with a final written warning for this conduct and explained to Mr Desmond that he would be required to attend counselling with the Respondent’s employee assistance provider to address the personal issues he was facing.

[65] The decision to issue Mr Desmond with a final written warning was made taking into account the following matters:

(a) The tone and content of the emails which Mr Desmond had sent was unacceptable, and not in accordance with the Charter value of “Respect”.

(b) Mr Desmond’s conduct in sending the emails constituted a breach of a number of provisions of the Code, including:

“Always treat everyone with respect and dignity. Never behave in a manner that could reasonably be perceived as offensive, insulting, intimidating, malicious or humiliating.”

“In line with our commitment to providing a safe and healthy work environment, while at work or when conducting company business, employees must be able to function at an acceptable level of performance and not be impaired by illegal or legal drugs, including alcohol.”

(c) Mr Desmond’s previous disciplinary history, including the warnings and counselling which he had previously received regarding his inappropriate conduct, unacceptable behaviour, the making of inappropriate communications and failure to conduct himself appropriately as a Supervisor.

(d) That despite being warned in relation to his behaviour, and being provided with ample opportunity to do so, Mr Desmond had failed to improve his behaviour.

(e) Mr Desmond had failed to approach Mr King to apologise for sending the emails after he had realised that he should not have sent them.

[66] On 25 May 2015 Mr King provided Mr Desmond with copies of the final written warning. That final written warning states:

“This Final Written Warning will be placed on your employee file and it is important that you understand that any further breaches of your contract of employment, policies, procedures or employment obligations will result in termination of your employment.”

[67] Mr King told Mr Desmond that one of these copies was for him to keep, and the other one he needed to sign and return to him. A few days later, Mr Desmond returned one copy of the final written warning, and explained that he did not want to sign it. Mr King told him that even if he did not sign the document it would be placed on his employee file. Mr Desmond did not dispute this, or any of the content of the final written warning.

[68] Mr Desmond commenced counselling with the Respondent’s employee assistance program. Mr King also checked in with Mr Desmond on a regular basis to see how he was going. During these discussions Mr Desmond told Mr King he was feeling a lot better, and said he was really glad that he had suggested he go to counselling, because it was helping him immensely.

[69] Because the regular discussions with Mr Desmond confirmed he was seeking counselling as required, and was addressing his personal issues, a formal performance improvement plan was not implemented.

The events on 13 and 14 August 2016

[70] On the weekend of 13 and 14 August 2016 Mr Desmond was the rostered Shift Supervisor for the night shifts on Saturday and Sunday night.

[71] Mr Desmond was also rostered to work a night shift on Monday 15 August 2016. However, he had explained to Mr King that he needed to travel to Queensland to deliver a trailer and some other possessions to his ex-wife, and was finding it difficult to find time to prepare for this trip. Accordingly, Mr King adjusted the roster so that Mr Desmond could have this shift off, to give him additional time to prepare for his trip to Queensland.

[72] On the weekend of 13 and 14 August 2016, the processing plant was shut down. It is not uncommon for the processing plant to be shut down on a weekend. This is because often all the required processing works are completed during the week, which means that maintenance tasks can be completed on the weekend.

[73] The nature of the Respondent’s operations is such that there is never a shortage of maintenance tasks which can be performed. For example, cleaning up spillage, fixing equipment, or undertaking repair work. As the Shift Supervisor, Mr Desmond was responsible for allocating employees to perform these tasks and for ensuring that relevant maintenance tasks are completed.

[74] In fact, the weekend operational notes which had been left for the Shift Supervisors on the weekend of 13 and 14 August 2016 said that employees were to complete as many “PN10” jobs as possible over the weekend. A “PN10” job is a job which a Technician is able to undertake. On the weekend of 13 and 14 August 2015 the only Technicians on site were Mr Ling (Mechanical Technician) and Mr Piggot (Electrical Technician).

[75] On Tuesday 16 August 2017 Mr King became aware that Mr Desmond may have brought his trailer to site and had other employees perform work on it.

[76] An investigation was conducted by Mr King. He rang Mr Ling and then Mr Piggot.

[77] He asked Mr Ling if he had undertaken any work on Mr Desmond’s trailer over the weekend of 13 and 14 August 2016. Mr Ling denied that Mr Desmond had brought his trailer onto site, or that he had carried out any work on it.

[78] Mr King told Mr Ling that he would need to clarify exactly what happened. Mr Ling again denied that Mr Desmond had brought his trailer to site, or that he had done any work on it.

[79] Mr King asked Mr Piggot if he had undertaken any work on Mr Desmond’s trailer over the weekend of 13 and 14 August 2016. Mr Piggot said that he could not remember if the trailer had been brought to site, or if he had looked at the trailer or done any work on it.

[80] Mr King told Mr Piggot that he would be in a lot more trouble if he was to find out from someone else that he had been working on the trailer over the weekend.

[81] In response Mr Piggot said that Mr Desmond had brought the trailer onto site using the shift ute, and said words to the effect of “I stripped a wire in order to get the lights working.” He said this work took approximately 30 minutes.

[82] Mr Piggot did not mention he had carried out the work on Mr Desmond’s trailer during one of his breaks.

[83] During the investigation Mr Desmond stated that the welding work had taken approximately 20 minutes and the wiring work approximately 30 minutes. This corresponds with the statement of Mr Piggot who stated that the wiring work he did had taken approximately 30 minutes. I find that the work Mr Desmond asked the employees to do on his trailer took Mr Ling approximately 20 minutes to complete and Mr Piggott 30 minutes to complete.

[84] The outcome of the investigation included that Mr Piggot was issued a written warning and Mr Ling a final written warning. Part of the reason for the disciplinary action taken against Mr Ling and Mr Piggot was that they had both been dishonest when initially asked about the incident, which also constitutes a breach of the Code and the Charter.

[85] Mr Ling was issued with a final written warning because he had continued to be dishonest during the investigation process, and had not given an honest account of what had occurred on the weekend of 13 and 14 August 2016, until he became aware that Mr Piggot had done so.

[86] Mr Ling came to apologise to Mr King for his dishonesty during the investigation and said the reason he had not immediately explained what had happened was because he did not want to get anyone in trouble which indicated to Mr King that Mr Ling understood that what had occurred on 13 and 14 August 2016 was in breach of the Respondent’s policies and procedures.

[87] On 8 September 2016 a meeting was held with Mr Desmond and his support person Mr Hartlebury regarding the events of 13 and 14 August 2016.

[88] Mr Desmond then provided a typed up statement and said:

(a) That he had brought his trailer to site.

(b) He was panicking about his wife wanting to see their children in Queensland and had been putting a lot of pressure on him to bring the children to Queensland because he had cancelled their last trip.

(c) He had some difficulty fitting a tow ball on his car. He explained that the tow ball he had purchased came with a square plug which did not fit on the trailer and he needed to change the plug on the trailer. He said he had tried to make arrangements to modify the trailer and to have the wiring fixed but wasn’t able to do so.

(d) The plant was shut down and he was in sheer desperation to have the works done. He also said words to the effect of

“Leigh got the wiring done and I got Roger to weld, we discussed it on the night (at prestart) I was unwell at the time and did not want time off. I had a lot on my plate to get everything done before I left- I made the call to bring it to site.”

[89] Mr King explained to Mr Desmond that using the Respondent’s assets and resources for personal use without approval was not in line with the Code and Charter. Mr Desmond acknowledged that breaching the Code and the Charter can result in disciplinary action up to and including termination.

[90] Mr Desmond was stood down from work while the investigation was completed.

[91] Following this it was decided to ask Mr Desmond to attend a show cause meeting as to why he should not be terminated. This was held on 12 September 2016 and again Mr Hartlebury attended as Mr Desmond’s support person.

[92] Mr King commenced the meeting by informing Mr Desmond that the investigation had concluded that by bringing his personal trailer to the Respondent’s site, and requesting Mr Piggot and Mr Ling to perform repairs to it, he had breached the Code, specifically the provisions which prohibit employees from using the Respondent’s assets for personal gain and for any purpose other than their intended purpose. He explained that Mr Desmond had also failed to demonstrate the behaviour expected of a Supervisor, and had breached the Charter values of “Integrity” and “Accountability”.

[93] Mr King told Mr Desmond that these were serious matters, that he had previously been issued with a final written warning and the Respondent was considering terminating his employment. Mr King then asked Mr Desmond if there was any further information which he wanted to tell them or to respond for to the reasons for the proposed termination of his employment.

[94] Mr Desmond then read from a written document he had prepared prior to the meeting. The matters which he raised were largely the same as those which he had raised during the meeting on 8 September 2016, and in the written statement he provided that day.

[95] After Mr Desmond had explained why, in his view, his employment should not be terminated, Mr King called a break in the meeting so that he and Ms Scaffardi could discuss what Mr Desmond had said. During the break Ms Scaffardi and Mr King considered what Mr Desmond had said during the meeting so far.

[96] They agreed that the matters which Mr Desmond had raised were largely, the same as those which he had raised during the meeting on 8 September 2016, and also in the written statement which he provided during that meeting. They agreed that Mr Desmond had not raised any further matters which justified the continuation of his employment. Accordingly, the decision was made to terminate his employment because:

(a) Mr Desmond had used the Respondent’s time and resources (being its equipment and employees) to obtain a personal gain, and not for their intended purpose.

(b) Mr Desmond’s conduct in having two of the Respondent’s employees perform work on his personal trailer was a breach of the Code. The Code prohibits employees from using the Respondent’s assets for any purpose other than their intended purpose, and using these assets for a personal gain. After such a long period of employment with the Respondent, Mr Desmond had been trained many times on the requirements of the Code, and as a Supervisor, was expected to set an example for all other employees by strictly complying with the requirements of the Code.

(c) By asking Mr Ling and Mr Piggot to perform work on his trailer, Mr Desmond had brought about a situation where these employees who he was responsible for supervising had breached the Respondent’s policies. This is not the type of behaviour which is expected of Supervisors.

(d) Mr Desmond had brought unauthorised equipment onto site without permission and without the Respondent’s knowledge, and had two of his direct reports perform unauthorised work on that equipment. The Respondent had no way of verifying the condition of Mr Desmond’s trailer, or whether the work performed was safe. This had the potential to expose the employees who carried out the work, and potentially others on site to a risk, which the Respondent had no way to manage or control. This in turn had the potential to expose the Respondent to liability if something had gone wrong while the work was undertaken, or while the trailer was being used by Mr Desmond or another person after the work had been performed.

(e) Mr Desmond had been disciplined in relation to his conduct on a number of occasions. On 25 May 2015, he had been issued with a final written warning. That final written warning stated that any further breaches by Mr Desmond of the Respondent’s policies and procedures would result in the termination of his employment. Mr Desmond had been put on notice of this fact, and the fact that after a final written warning has been issued the only possible disciplinary action which is available to the Respondent is termination of employment.

(f) Mr King also considered Mr Desmond’s personal circumstances. These were unfortunate, but Mr King did not consider that his personal circumstances justified his conduct. Mr Desmond is responsible for his actions at work. He is responsible for ensuring that while he is at work he performs the requirements of his role, including complying with the Respondent’s policies and procedures, and setting an example for the employees who he supervises.

(g) Even if the work was performed by Mr Ling and Mr Piggott on both occasions while they were supposed to be on a scheduled break that does not excuse this. The employees work 12 hour shifts and the proper breaks are part of fatigue and risk management. If they were working during their break on Mr Desmond’s trailer then they did not have their break as was required and so were not able to rest. Mr Desmond should not have permitted them not to have their breaks. Mr Desmond was responsible for ensuring his direct reports engaged in safe working practices which includes taking appropriate breaks to which the employees were entitled.

[97] The meeting was resumed and Mr King told Mr Desmond that the decision had been made to terminate his employment. Mr King told him that he would shortly receive a letter confirming this decision, and the details of his final pay, including his payment in lieu of notice.

The Applicant’s submission

[98] Mr Desmond submits that Mr Ling and Mr Piggott carried this work out on the 13 and 14 of August 2016 of their own free will and at no point in time did they feel pressured or obligated to perform this work and would have had no problem refusing if they were not comfortable doing so.

[99] At no point in time did Mr Desmond believe that the tasks carried out warranted escalation to either an On-call Manager or his Line Manager and if he had felt that this was necessary he would have had no hesitation in requesting permission for this. These tasks were carried out whilst the entire plant was shut down, during normal scheduled break periods and both tasks were very low risk.

[100] On numerous previous occasions Mr Desmond had utilised workshop tools and equipment for personal use with BHP’s approval.

[101] Mr Desmond strongly refutes the claim by the Respondent that assigned work was not completed on the nights in question.

[102] Mr Desmond submits he is unsure if he has breached the Code as it is clearly stipulated within the Code on page 50 some examples that is within the guidelines of this Code for employees to utilise BHP assets, including its information systems and communication resources for a moderate amount of personal use. He therefore submits that his actions were well within the acceptable guidelines of the Code.

[103] Mr Desmond says he was subjected to past disciplinary action in May 2015 for an incident that occurred relating to an email he sent to his Line Manager whilst on break. He acknowledges he was issued with a first and final written warning as a result. Mr Desmond referred to BHP’s Performance Counselling and Discipline procedure and questioned that BHP followed this in relation to his case. He submits there was no clear timespan placed on this warning, no Performance Improvement Plan put in place as referred to in the warning and no regular follow up meeting to monitor improvement and give feedback regarding progress. Mr Desmond says he possibly wrongly assumed that after 12 months of acceptable behaviour this warning would be considered to have been removed but did however comply with stipulated actions relating to this warning and received phone counselling sessions as this was a very difficult time for him both professionally and personally.

[104] Mr Desmond is a single supporting father of two children and says he would never intentionally put himself in a position where his 21 year career with BHP would be in jeopardy. Certainly not at this time when financial pressure was very real and he had a responsibility as a father to provide for his children.

[105] The Applicant submits the previous disciplinary action was in no way related to 13 and 14 August 2016 incident and completely dissimilar in nature.

[106] It is submitted the decision made by the Respondent was extremely harsh and unfair given the Applicant’s 21 years loyal service to the Respondent and active involvement as a member of the Kambalda community.

[107] This decision has resulted in enormous sacrifice for both the Applicant and his children due to the limited amount of work available in the Kambalda region for which the Applicant has the skills and technical expertise to satisfy. The Applicant has secured a role as Process Operator that requires him to live away from his children for the duration of his shift roster which is eight days on six days off seven nights on seven days off which has caused much anxiety for all involved.

The Respondent’s submission

[108] The Respondent submits that the Applicant’s misconduct destroyed the necessary trust between the employer and employee and that in the circumstances it was appropriate for the Respondent to terminate the Applicant’s employment and pay out his notice.

[109] The Applicant’s actions on 13 and 14 August 2016 amounted to misconduct because the Applicant:

(a) Used the Respondent’s resources for his personal gain.

(b) Did not disclose to his Supervisor, Mr King, or any other officer of the Respondent, that he intended to do that. Nor did he seek permission.

(c) Directed subordinates to use their time and the Respondent’s resources for the Applicant’s personal gain. Whilst the employees in question say that the Applicant “requested” that they do the work, in the circumstances of the request coming from their immediate Supervisor, who had authority over them, the Respondent submits that the “request” was, for all intents and purposes, a “direction”. It is notable that the Applicant brought his trailer to work on 13 August 2016 prior to requesting the employees to repair it. This establishes that he fully expected that they would agree to do so, and provides a basis for the Commission to find that the “request” was for practical purposes, a “direction”.

(d) Brought personal tools and equipment onto site in order to facilitate the repair of his trailer.

(e) Did all this in order to have his trailer repaired more expeditiously, and avoid having to pay for the repairs himself.

[110] During the investigation, the Applicant admitted that during his shifts on 13 and 14 August 2016 he:

(a) Brought his trailer on site on two separate occasions to have it repaired.

(b) Directed two of his subordinates to work on his trailer on site and during their shift.

[111] The Applicant claims that the work carried out by his subordinates on his trailer was carried out during what would have been a standard break throughout the shift.

[112] The Respondent submits that even if the repair work was carried out during shift breaks, the time spent repairing the trailer would have taken up if not the entirety, then at least the majority, of the employees’ break periods.

[113] Given that the employees at the Respondent’s site work 12 hour shifts, it is a safety imperative that employees take their scheduled breaks to avoid fatigue. The Applicant was in a position of authority over the employees in question and it was improper and unsafe of him to “request” that the employees forgo their breaks in order to repair his trailer.

[114] The Applicant’s actions in having the trailer repaired on site by his subordinates was misconduct regardless of whether the work was carried out by the employees during their breaks.

[115] The Applicant’s actions breached the Code which requires employees to protect BHP assets and “Never use BHP Billiton assets for personal gain”, use BHP assets “for the purpose and manner intended with all appropriate and accurate records kept” and to always BHP assets “for the intended purposes”.

[116] The Respondent submits as a Shift Supervisor, the Applicant was required under the Respondent’s Code to consistently demonstrate exemplary behaviour. By directing two of his subordinates to work on his trailer on site he breached the Code, not only by failing to demonstrate “exemplary behaviour” but also by failing to fulfil a further requirement of the Code which requires Supervisors to “take all reasonable steps to ensure that the people for whom they are responsible...uphold the behaviours outlined in the Code and Charter Values”.

[117] The Applicant’s actions, it is submitted, directly led to his subordinates acting in breach of their obligations under the Code and resulted in them also being subjected to disciplinary proceedings.

[118] The Applicant notes that in the “Protecting BHP Billiton assets” section of the Code, an example is included on page 50 which relates to an employee who runs a home business. In the example the employee uses a company computer for their home business, and the test states “BHP Billiton assets, including its information systems and communication resources are only to be used for Company business purposes and moderate personal use”. The Applicant submits that his actions in having his trailer repaired on site is analogous to “moderate personal use” of the Respondent’s assets and therefore is not a breach of the Code.

[119] The Respondent submits that the Applicant’s decision to bring a trailer and equipment onto site and request that subordinates repair the trailer during their shift is distinguishable from the example provided. The Applicant’s actions involved other employees, it involved bringing outside equipment onto site and it had potential safety ramifications.

[120] Furthermore, while the example in the Code references “moderate personal use” of the Respondent’s assets, the next sentence states, “You are not permitted to work on your ‘home’ business from BHP Billiton premises or use BHP Billiton property, including its information systems for these purposes.”

[121] The Respondent submits that the Code makes it clear that employees cannot use the Respondent’s property or carry out work on the Respondent’s premises, for the benefit of their own business. Accordingly, to the extent that the example in the Code is analogous to the Applicant’s actions, the Respondent submits it only demonstrates that the Applicant committed misconduct on 13 and 14 August 2016.

[122] The Applicant claims that on previous occasions he had loaned the Respondent’s equipment for personal use. Significantly the Applicant claims that he always asked Mr McCarthy, Maintenance Supervisor, for permission to borrow the equipment in question. The fact that the Applicant sought permission previously is consistent with the Respondent’s position that authorisation was required. Further, Mr King’s evidence establishes that when first confronted about the matters, both Mr Ling and Mr Piggot denied having performed any work on the trailer (Mr Piggot said he “couldn't recall” the trailer being brought onto site). The Respondent submits that these denials evidence that each employee knew that the conduct was contrary to the Code and Charter, and was not permitted.

[123] The Applicant was a Production Shift Supervisor at the Respondent and he occupied a position of seniority and responsibility within the Respondent’s organisation. Up to six employees reported to the Applicant and he was often the most senior person on site. The Applicant was in a position of influence and authority. The Applicant was also an “Appointed Person” under sections 43 and 44 of the MSI Act which imposed upon him a range of responsibilities.

[124] The Applicant worked with significant autonomy and discretion within his role. Along with his statutory obligations, the Applicant was responsible for prioritising tasks, assigning work, managing subordinates and ensuring compliance with the Respondent’s policies and procedures.

[125] The Respondent submits that given the Applicant’s seniority and autonomy, the Applicant owed fiduciary duties to the Respondent. These duties included acting in the Respondent’s best interests and not personally profiting at the Respondent’s expense.

[126] The Applicant’s actions in having his trailer repaired at work by his subordinates and during work time:

(a) took up working time which he and his subordinates could have used to complete work for the Respondent; or

(b) alternatively, absorbed the affected employees’ break time and risked them working unsafely due to fatigue; and

(c) led to the Applicant profiting from the repairs because he was not required to pay to have the work carried out himself.

[127] The Applicant admitted that he had taken his trailer onto site to have it repaired because he had run out of time to have it repaired elsewhere and also because he could not afford to pay for the repairs which demonstrates that the Applicant’s actions were knowingly directed towards deriving a valuable benefit.

[128] The Applicant acted in a manner designed to derive personal benefit at the Respondent’s expense without informing the Respondent or seeking the Respondent’s authorisation for his actions.

[129] The Applicant’s actions were in breach of his fiduciary duty to act in the Respondent’s best interests and to not personally profit at the Respondent’s expense.

[130] Even if the Commission was not persuaded that the Applicant owed fiduciary duties to the Respondent, the Respondent submits that the Applicant’s position of seniority and authority in the Respondent’s business is relevant in assessing whether the Applicant’s misconduct warranted termination.

[131] The Applicant argues that his long employment history, in excess of 20 years with the Respondent, ought to be considered as a mitigating factor against his termination.

[132] The Respondent submits that the Applicant’s long service with the Respondent makes his actions on 13 and 14 August 2016 even more concerning. The Applicant completed annual training on the Code, which deals with ethics and professional conduct at the Respondent, including in June 2016 only two months prior to the misconduct in question.

[133] The Applicant also ran training on the Code for his subordinates on numerous occasions in previous years. The Applicant has stated that he discussed with his subordinates the importance of not even taking small items from the Respondent for personal use.

[134] In these circumstances, the Respondent submits that the Applicant’s long service with the Respondent ought not to weigh against the Respondent’s decision to terminate. Furthermore, the Respondent submits that the long service of an employee is not relevant in circumstances where an employee acts in breach of a fiduciary duty to act in the best interests of their employer and not seek personal gain at its expense.

[135] The Applicant has submitted that Mr McCarthy has previously authorised him to loan equipment from the Respondent’s site to use for personal purposes. The Respondent submits that occasions where the Applicant loaned equipment from the Respondent to use at home are distinct from the circumstances of the Applicant’s misconduct. The equipment in those cases is moveable, it was used off site by the Applicant in his own time and then safety checked on its return to site.

[136] The Respondent submits that these previous occasions on which the Applicant was allowed to loan items from the Respondent are irrelevant to the current matter. In addition, the Applicant submits that Mr McCarthy did not have any issues with his actions on 13 and 14 August 2016. Mr McCarthy was not the Applicant’s supervisor. He did not have the authority to authorise the Applicant to bring his trailer onto site and to have it repaired and did not do so.

[137] At no point did the Applicant seek such authorisation to bring his trailer onto site for repairs. The only officers of the Respondent with sufficient to authority to grant such a request were a Superintendent or the Registered Mine Manager.

[138] Not only did the Applicant not seek authorisation, he never even informed anyone at the Respondent that he intended to bring his trailer onto site. The only people aware of the Applicant’s actions were his subordinates and himself.

[139] On 25 May 2015, the Applicant was issued a final written warning in relation to his conduct in early May 2015. The final written warning was issued to the Applicant by his Manager in response to emails which the Applicant had sent.

[140] The final warning letter issued to the Respondent stated that “any further breaches of your contract of employment, policies, procedures, or employment obligations will result in termination of your employment” (original emphasis).

[141] When the Applicant committed further misconduct less than 18 months later, the Respondent was within its rights to take the final written warning on the Applicant’s file into account.

[142] The Applicant informed the Respondent that he was suffering from difficulties in his personal life and that his actions on 13 and 14 August 2016 were the result of those difficulties. In particular, the Applicant explained that he was intending to take his children to visit their mother (and his ex-wife) in Queensland later in August 2016. During that visit, the Applicant intended to return a number of personal effects to his ex-wife and he required his trailer to be in working order prior to his departure.

[143] A careful review of the written statement the Applicant tendered at the first meeting at which these matters were discussed reveals that he damaged the trailer ‘many months’ prior to the weekend in question. He admits to having purchased the electrical wiring to install on the trailer ‘some months’ prior to the weekend in question.

[144] Notwithstanding that the Applicant worked a 7/7 roster, being one which enabled him to have every second week off work, he did nothing in his own time to attend to these matters during the ‘many months’ in which it was evident to him that they required attention. The inevitable conclusion which must be drawn is that the urgency which confronted the Applicant on the weekend in question to attend to these matters, was the result of his own neglect and inaction in relation to them. Accordingly, the Applicant’s submission that his actions were born of necessity ought to be discounted.

[145] Furthermore, the Respondent was aware of the challenging circumstances facing the Applicant in August 2016. The Applicant admitted that the Respondent provided him flexibility in his working arrangements during 2016 in order to tend to family commitments. Additionally, the Applicant was given approval from his Supervisor, Mr King, to take leave on 15 August 2016 in advance of his trip to Queensland.

[146] The Respondent’s treatment of the Applicant during this period demonstrates its compassion for the Applicant’s circumstances and the latitude which it was prepared to grant him. Consistent with this, the Respondent took the Applicant’s mitigating circumstances seriously when assessing the appropriate sanction in relation to his misconduct. The Respondent’s decision to terminate the Applicant’s employment was made because the Applicant’s actions in the context of his seniority and his disciplinary history were deemed so serious as to outweigh the mitigating circumstances.

[147] The Respondent submits that the steps carried out by the Respondent, set out above, demonstrate a genuine and thoroughgoing investigation was completed by the Respondent and that the Applicant was afforded procedural fairness.

[148] The Applicant was terminated with payment in lieu of notice and the decision to pay out the Applicant’s notice period is a relevant consideration when assessing whether the termination was “harsh, unjust or unreasonable”.

[149] The Respondent submits that the Applicant’s termination was not “harsh, unjust or unreasonable”; a valid reason existed for the dismissal, the Applicant was afforded procedural fairness and the sanction was appropriate in the circumstances.

The Legislation

[150] Section 387 of the Act sets out those matters that the Commission must have regard for when considering whether or not the dismissal of Mr Desmond was harsh unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[151] On 13 August 2016, the Applicant brought a trailer to the Respondent’s Kambalda site. During that shift he asked Mr Ling, one of his direct reports, to carry out some welding work on the trailer. That work performed by Mr Ling took approximately 20 minutes.

[152] On 14 August 2016, the Applicant brought the trailer to the Kambalda site for a second time. The trailer was brought to site so that wiring could be connected to the tail lights on the trailer. That work was performed by Mr Piggott (another of the Applicant’s direct reports). The work was performed using equipment owned by the Respondent. The Applicant purchased and supplied the wiring. The work took approximately 30 minutes for Mr Piggott to complete.

[153] Mr Desmond did not seek prior authorisation for this work to be done on his trailer by BHP employees at the BHP site nor after the work had been completed did he tell anybody in authority he had done so.

[154] I accept Mr Desmond used BHP resources for his own benefit.

[155] Mr Desmond’s actions were premeditated in that he brought the trailer to the work site on both days and brought to work some necessary tools and had purchased and brought to work the wiring Mr Piggott installed.

[156] I reject Mr Desmond’s submission that his actions fall within the exception of moderate personal use of BHP assets provided for in the Code. No objective reader of BHP’s Code would conclude that BHP would accept that a Supervisor arranging for two other BHP employees to do personal work for that Supervisor for a total of 50 minutes during shift was acceptable.

[157] Mr Desmond’s actions on 13 and 14 August 2016 were breaches of the Code and Charter which he was aware of and had been regularly trained in.

Valid reason

[158] Mr Desmond’s actions on 13 and 14 August 2016 were misconduct, his actions were breaches of the Respondent’s Code and Charter and were valid reasons for his dismissal.

Notification of the reason

[159] Mr Desmond was notified prior to being dismissed of the reasons BHP were considering dismissing him.

Opportunity to respond

[160] Mr Desmond was provided with an opportunity to explain his actions of 13 and 14 August 2016 when he was interviewed during the investigation.

[161] Following this during the meeting on 12 September 2016 Mr Desmond was advised of the reasons BHP were considering dismissing him and he was provided with an opportunity to respond to those and he did so.

Refusal to allow a support person

[162] BHP did not refuse to allow Mr Desmond to have a support person present at discussions relating to his dismissal.

Unsatisfactory performance warnings

[163] The dismissal did not relate to unsatisfactory performance.

The employer’s size and HR management specialists

[164] The employer is a large business which does have a Human Resource Manager and specialists and the procedure adopted in this case reflected this.

Other matters

[165] There are a number of other matters which are relevant in considering whether Mr Desmond’s dismissal was harsh, unjust or unreasonable.

[166] Mr Desmond has been employed for approximately 21 years which is a relevant consideration in his favour.

[167] Mr Desmond does not have an unblemished employment record. In May 2015 Mr Desmond received a written final warning as a result of emails he sent to his Superintendent Mr King. That final written warning stated any further breaches of policies or employment obligations will result in termination of his employment. Prior to this Mr Desmond was verbally counselled in March 2014 regarding a comment he made about members of the Maintenance Team in the presence of others. In July 2013 a note was placed on his file again regarding emails he had sent to his Superintendent. The first record of any concern about Mr Desmond’s conduct was in May 2009 which involved a meeting to discuss those concerns.

[168] Mr Desmond was the Production Shift Supervisor. This position is a senior and responsible position and often Mr Desmond was the most senior person on the site. As such BHP placed significant trust in Mr Desmond. I accept the submission of BHP that Mr Desmond’s actions mean BHP can no longer trust him to properly fill such a role.

[169] Mr Desmond does not recognise the seriousness of his actions, even in the knowledge it led two other employees to be formally disciplined because they initially lied to cover up what had occured.

[170] Mr Desmond’s personal circumstances include that he separated from his wife in January 2015 and she left Kambalda in August 2015 to live in Queensland. Both of Mr Desmond’s children live with him in Kambalda. At the time of Mr Desmond’s actions I accept he was under some time pressure to ensure the trailer was roadworthy for his imminent trip with his children to visit his wife in Queensland. The evidence however is that he had been aware for some months of the work that needed to be done to his trailer to make it roadworthy.

[171] Mr Desmond’s personal circumstances were raised by him in mitigation at the time he received his final written warning in 2015 and at that time BHP provided counselling at their expense to assist him. Further on this occasion Mr King, following a discussion where Mr Desmond said he was finding it difficult to prepare for his trip, had already changed the roster to assist Mr Desmond prepare for his trip to Queensland. BHP had been mindful of his personal circumstances in the past and on this occasion had made adjustments in consideration of Mr Desmond’s personal circumstances to assist him.

[172] Mr Desmond has obtained alternative employment however it is at a location somewhat remote from his home which creates difficulties for his family.

Conclusion

[173] Considering all of these matters above I am satisfied that the dismissal of Mr Desmond was neither harsh, unjust nor was it unreasonable. Mr Desmond was not unfairly dismissed.

[174] This application will be dismissed and an order to that effect will be issued.

COMMISSIONER

Appearances:

P. Desmond on his own behalf.

V. Macrin on behalf of the Respondent.

Hearing details:

2017.

Kalgoorlie:

February 8.

Printed by authority of the Commonwealth Government Printer

Paul Desmond v BHP Billiton Nickel West Pty Ltd